AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
Judges
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
Judges
Smart Summary

Factual and Procedural Background

This opinion arises from an appeal against an order of Mr. Justice Tendolkar granting leave to the plaintiffs to amend the plaint. A preliminary objection was raised questioning whether the order constituted a judgment within the meaning of clause 15 of the Letters Patent, thereby affecting the right to appeal. The Court revisited a previous decision on a similar issue and examined the scope of the Court's jurisdiction to allow amendments to pleadings when the plaint does not disclose a cause of action.

Legal Issues Presented

  1. Whether an order granting leave to amend the plaint constitutes a "judgment" within the meaning of clause 15 of the Letters Patent, thereby permitting an appeal.
  2. Whether the Court has jurisdiction to allow an amendment of the plaint that cures a defect of not disclosing a cause of action, or if such a plaint must be rejected without amendment under Order VII, Rule 11 of the Civil Procedure Code.
  3. The interplay between the Court’s power to amend pleadings under Order VI, Rule 17 and the mandatory rejection of plaints under Order VII, Rule 11.

Arguments of the Parties

Appellant's Arguments

  • The order granting leave to amend the plaint is not a judgment under clause 15 of the Letters Patent and therefore not appealable.
  • Reliance on the precedent Sheshgiridas Shanbhag v. Sunderrao where allowing amendment was held not to be a judgment.
  • Distinction made that in the present case the plaint allegedly discloses no cause of action and the learned Judge allowed facts to be pleaded to create a cause of action, which appellant contends is beyond jurisdiction.
  • Reliance on Order VII, Rule 11 to argue that a plaint not disclosing a cause of action must be rejected and cannot be amended.
  • Supporting authority cited: Sailesh Nath Bisi v. J. Chaudhurji and Ma Shwe Mya v. Maung Mo Hnaung for the proposition that the Court has no jurisdiction to allow amendment substituting one cause of action for another.

Respondent's Arguments

  • The Court has broad discretion under Order VI, Rule 17 to allow amendments to pleadings to ensure real questions in controversy are adjudicated.
  • The power to amend is not restricted or controlled by Order VII, Rule 11, which mandates rejection only if no cause of action is disclosed and no amendment is possible.
  • It is necessary and proper for the Court to allow amendments to cure defects in the plaint so that a cause of action is disclosed rather than dismissing the suit outright for an oversight or mistake.
  • Distinction from cited authorities: the Calcutta High Court decisions relied upon dealt with different procedural contexts and do not control the present case.
  • The Privy Council decision in Ma Shwe Mya v. Maung Mo Hnaung was about the proper exercise of discretion and did not deny jurisdiction to allow amendments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sheshgiridas Shanbhag v. Sunderrao Order granting leave to amend plaint is not a judgment under clause 15 of Letters Patent; discretionary power to allow amendment. Followed to hold that the order granting leave to amend is not a judgment and no appeal lies.
Sailesh Nath Bisi v. J. Chaudhurji Where plaint does not disclose cause of action, Court must reject it and has no jurisdiction to allow amendment. Distinguished and rejected by the Court as an incorrect view of the Court’s powers under Order VI, Rule 17.
Midnapore Zemindary Company Ltd. v. Secretary of State for India Refusal to allow amendment to rectify undervaluation of plaint under Order VI, Rule 17(b). Not considered applicable as it dealt with a different procedural issue, not the issue before the Court.
Ma Shwe Mya v. Maung Mo Hnaung Court has no jurisdiction to allow substitution of one cause of action for another by amendment. Interpreted as addressing the proper exercise of discretion, not jurisdiction; Court held it does not bar amendment jurisdiction.

Court's Reasoning and Analysis

The Court began by reaffirming the principle from Sheshgiridas Shanbhag v. Sunderrao that an order allowing amendment to the plaint is not a "judgment" within the meaning of clause 15 of the Letters Patent and hence is not appealable. The Court then analyzed the interplay between Order VI, Rule 17, which grants broad discretionary power to amend pleadings, and Order VII, Rule 11, which mandates rejection of a plaint failing to disclose a cause of action.

The Court rejected the contention that Order VI, Rule 17 is controlled or restricted by Order VII, Rule 11. It held that the Court may prevent the operation of Order VII, Rule 11 by allowing an amendment that cures defects in the plaint, thereby avoiding dismissal. The Court emphasized that it would be unreasonable to require dismissal of a plaint for a mere oversight that can be corrected by amendment.

The Court distinguished the Calcutta High Court decision in Sailesh Nath Bisi as dealing with a different procedural context and declined to follow it. Similarly, the Privy Council decision in Ma Shwe Mya was interpreted as addressing the proper exercise of discretion rather than jurisdiction to allow amendments.

Ultimately, the Court held that the order of Mr. Justice Tendolkar was a discretionary order allowing amendment and not a judgment. Therefore, no appeal lies against it. The Court dismissed the appeal and the cross-objections with costs.

Holding and Implications

The appeal is dismissed, and the order granting leave to amend the plaint is held not to be a judgment within the meaning of clause 15 of the Letters Patent, thus no appeal lies against such an order.

The direct effect of this decision is to uphold the learned Judge's discretion to allow amendment of the plaint even when the original plaint does not disclose a cause of action, thereby preventing premature dismissal of suits on technical grounds. No new precedent beyond the reaffirmation of existing principles was established.

    Gaganmal Ramchand v. Hongkong And Shanghai Banking Corporation

    Chagla, C.J:—

    This is an appeal from an order of Mr. Justice Tendolkar granting leave to the plaintiffs to amend the plaint. A preliminary objection is taken by Mr. Manecksha that the order does not constitute a judgment within the meaning of cl. 15 of the Letters Patent and no appeal lies.

    Now, the same question came up before a bench of this Court consisting of Sir Harilal Kania, Acting Chief Justice as he then was, and myself, in Sheshgiridas Shanbhag v. Sunderrao, and we held that allowing an amendment of the plaint was not a judgment within cl. 15 of the Letters Patent. Mr. Seervai has tried to distinguish this judgment. According to him we were dealing there with a case where the contention was that the order made by my brother Coyajee J. granting leave to amend the plaint allowed matters to be pleaded which went beyond the scope of the suit, and we held that assuming the learned Judge was wrong in allowing the amendment, the most that could be said was that he had improperly exercised the discretion vested in him to make the order under O. VI, r. 17. The contention was put forward in that case that Mr. Justice Coyajee had no jurisdiction to make the order that he had made. That contention was rejected by us. Mr. Seervai says that in the present case the plaint discloses no cause of action and the learned Judge by allowing the amendment of the plaint has permitted the plaintiffs to plead facts which would give them a cause of action, and according to Mr. Seervai once the plaint does not disclose a cause of action, the plaint is liable to be dismissed and must be dismissed and the Court has no jurisdiction to allow an amendment of the plaint. Therefore, Mr. Seervai says that whereas in Sheshgiridas Shanbhag v. Sunderrao no question of jurisdiction of the Judge arose, in the case before us now the question of his jurisdiction does arise. For the purpose of this appeal we are assuming that the plaint did not disclose a cause of action although the learned Judge has held that the cause of action was defective and by the amendment which he allowed the defect was cured.

    Now; apart from authority, turning to the scheme of the Civil Procedure Code, O. VI, r. 17 is very wide in its terms and it gives power to the Court to allow either party to alter or amend his pleadings in order that the real questions in controversy between them should be adjudicated upon. Mr. Seervai relies on O. VII, r. 11, which provides that the plaint shall be rejected in the cases mentioned in that rule and the one with which we are concerned is where it does not disclose a cause of action. Mr. Seervai's argument is that when a plaint comes before the Court and that plaint does not disclose a cause of action, it is mandatory upon the Court to reject that plaint and dismiss the suit and the Court has no power to permit the plaint to be amended. In other words, Mr. Seervai's contention is that O. VI, r. 17, is controlled by O. VII, r. 11, and in cases falling under O. VII, r. 11, the Court has no jurisdiction to order the amendment of the plaint. I am unable to accept that contention. I see no reason whatever why the power of the Court to allow amendment of pleadings should be in any way restricted or controlled by the provisions contained in O. VII, r. 11. It is perfectly true that it is incumbent upon the Court to reject a plaint that does not disclose a cause of action, but it does not follow that it is not open to the Court to allow a plaint to be amended so that it should disclose a cause of action. It is only when a plaint does not disclose a cause of action that the Court is called upon to exercise its power under O. VII, r. 11. But the Court may prevent the operation of O. VII, r. 11, and may save the plaint being rejected by exercising its power under O. VI, r. 17, and allowing the plaint to be amended. It would indeed be an extraordinary proposition to lay down that if various averments had to be made in the plaint which would go to constitute a cause of action, and by some oversight or some mistake the plaintiff failed to make one of the averments, then in that case the plaint must be dismissed and the plaintiff could not apply for an amendment and make the necessary averment.

    In support of his proposition Mr. Seervai has relied on the decision of a single Judge of the Calcutta High Court in Sailesh Nath Bisi v. J. Chaudhurji. In that case Mr. Justice Gentle held that where a plaint did not disclose on the face of it a cause of action, the Court had no option but to reject it and had no jurisdiction to allow an amendment. With great respect to the learned Judge, I am unable to accept the view taken by him as to the powers of the Court under O. VI, r. 17. Whether in a particular case an amendment should be allowed or not must always be a question of the proper or improper exercise of the discretion by the Court. It cannot be said that when a Court allows an amendment of the plaint the Court is acting without jurisdiction. In a particular case the order of the Court may be attacked and successfully attacked and it may be shown that the exercise of the discretion by the Court was not a proper discretion. But I am unable to agree with Mr. Justice Gentle that the Court has no jurisdiction to allow an amendment of the plaint which on the face of it did not disclose a cause of action. In coming to this decision Mr. Justice Gentle relied on an earlier decision of the Calcutta High Court which is a decision of a division bench and that is the case of Midnapore Zemindary Company Ltd. v. Secretary of State for India. There the Court was not dealing with O. VI, r. 17(a), but was dealing with O. VI, r. 17(b). In that case the relief claimed was undervalued and the plaintiff was required by the Court to correct the valuation within a time which was fixed by the Court and the plaintiff failed to do so. Then the plaintiff applied to amend the plaint so as to strike out a particular declaration which he wanted which resulted in his plaint being undervalued and that amendment was refused by the Court. It is unnecessary to consider, with very great respect, whether that decision of the Calcutta High Court is correct or not because it was dealing with a case which is not before us. As will be noticed, there an order was made by the Court to make good the deficiency in the valuation of the plaint. That order was not carried out by the plaintiff and it was under those circumstances that the Calcutta High Court came to the conclusion that it had no jurisdiction to allow the amendment of the plaint.

    Mr. Seervai has also relied on the decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung, for the proposition that the Court has no jurisdiction to permit a plaintiff to substitute by an amendment one distinct cause of action for another. We had to consider this very case in Sheshgiridas Shanbhag v. Sunderrao, and that very case was attempted to be pressed into service by Mr. Desai who then argued the appeal for the proposition that the Privy Council had laid down that the Court had no jurisdiction to substitute one cause of action for another, and in my judgment I have pointed out that the Privy Council does not say that the Court had no jurisdiction to make an order for amendment. As a matter of fact, if one reads the judgment of Lord Buckmaster it is clear that all that the Privy Council was laying down was that in that particular case, viz. of substituting one cause of action for another, leave to amend could not be considered to be properly given in accordance with the rules by which leave to amend must necessarily be regulated. Therefore, the Privy Council also was considering the proper or improper exercise of the discretion vested in the Court to allow the amendment of pleadings.

    Therefore, if what Mr. Justice Tendolkar has done is merely to exercise his discretion in allowing the plaint to be amended, the most that Mr. Seervai can say is that in this particular case his exercise of the discretion has not been proper. In that view of the case the decision in Sheshgiridas Shanbhag v. Sunderrao is indistinguishable, and following the decision of that division bench we must hold that the order made by Mr. Justice Tendolkar is not a judgment and no appeal lies from that order. The result is that the appeal fails and is dismissed with costs.

    There are cross-objections against the order of Mr. Justice Tendolkar with regard to costs and Mr. Manecksha very fairly concedes that those cross-objections would not lie. The result is that the cross-objections also fail and must be dismissed with costs.

    Coyajee, J.:—I agree.

    Attorneys for appellants: Little & Co.

    Attorneys for respondents: Crawford, Bailey & Co.

    Appeal dismissed.
    A.J.P
    Use AI to get other relevant cases.

    Comments

    Gaganmal Ramchand v. Hongkong And Shanghai Banking Corporation
    (Mar 8, 1950)